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Singh v Dominion Insurance [2016] FJHC 193; HBC167.2014 (16 March 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 167 of 2014


BETWEEN :


SHIU KAMAL SINGH of Vuci Road, Nausori, Businessman.
PLAINTIFF


AND :


DOMINION INSURANCE having its registered office at Waimanu Road, FM 96 Building.
DEFENDANT


BEFORE : Master V. D. Sharma


COUNSEL : Mr. Vakaloloma for the Plaintiff
Ms. Swastika Narayan for the Defendant


Date of Hearing : 10th December, 2015
Date of Ruling : 16th March, 2016


RULING


BACKGROUND


  1. The above named Defendant filed and served a Summons on 22nd July, 2014 and sought for the following orders-:
  2. The application was made pursuant to Or.18 r.6 (1) or, Or.18 r.7 (a) (b); Or. 18 r.11 (1) & Or. 18 r. (1) (b) (d) of the High Court Rules 1988 and under the inherent jurisdiction of the High Court.
  3. The Plaintiff opposed the striking out of the Defendant’s application and filed an Affidavit in Reply on 04th September, 2014.
  4. The matter was proceeded for hearing on 10th December, 2015 in terms of the affidavit evidence filed coupled with the written submissions furnished by both parties to the proceedings.

THE LAW


  1. The law on striking out pleadings and endorsements is stipulated at Order 18 Rule 18 of the High Court Rules 1988 which states as follows-

18.-(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-


(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;


and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.


(2) No evidence shall be admissible on an application under paragraph (1)(a).


(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.


  1. The law dealing with Facts, not evidence, to be pleaded is provided for in terms of (O.18, r.6)-

6.-(1) Subject to the provisions of this rule, and rules 9, 10 and 11, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.


(2) ---
(3) ---
(4)----


  1. The law dealing with Matters which must be specifically pleaded (O.18, r.7)-

7.-(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality –

(a) which he alleges makes any claim or defence of the opposite party not maintainable; or

(b) which, if not specifically pleaded, might take the opposite party by surprise; or

(c)-.


  1. The law dealing with Particulars of pleading (O.18, r.11)-

11.-(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words-

(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

(b) ---


Issues for Determination


  1. Following are the issues which require determination by this honourable court;-

ANALYSIS and DETERMINATION


Scandalous, Frivolous or Vexatious & Abuse of Process of the Court


  1. It is well established that jurisdiction to strike out claim or pleadings should be used very sparingly and only in exceptional case Timber Resource Management Limited v. Minister for Information and Others [2001] FJHC 219; HBC 212/2000 (25 July 2001).
  2. In National MBF Finance (Fiji) Ltd v. Buli Civil Appeal No. 57 of 1998 (6 July 2000) the Court stated as follows:-

“The Law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved.


If a legal issue can be raised on the facts as pleaded then the Courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. it follows that an application of this kind must be determined on the pleadings as they appear before the Court....”


  1. Whether the claim is Scandalous? Reference is made to the Supreme Court Practice 1993 (White Book) Vol. 1 at paragraph 18/19/14 states as follows-

"The Court has a general jurisdiction to expunge scandalous matter in any record or proceedings (even in bills of costs, Re Miller (1884) 54 L.J.Ch. 205). As to scandal in affidavits, see O.41, r.6.’


Allegations of dishonesty and outrageous conduct, etc., are not scandalous, if relevant to the issue (Everett v. Prythergch (1841) 12 Sim. 363; Rubery v. Grant (1872) L.R. 13 Eq.443).


"The mere fact that these paragraphs state a scandalous fact does not make them scandalous" (per Brett L.J. in Millington v. Loring (1881) 6 Q.B.D. 190, p.196). But if degrading charges be made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleading becomes scandalous (Blake v. Albion Assurance Society (1876) 45 L.J.C.P. 663)."


  1. The Plaintiff on 23rd June, 2014 initiated this action by way of a Writ of Summons and the Statement of Claim, claiming for special damages in the sum of $84,800, general damages for pain and suffering, general damages for negligence, general damages foe denial and breach of legitimate expectations, general damages for breach of contract, costs and interests, arising out of an insurance claim.
  2. The Defendant submitted to the court that the names of the parties are incorrect. The party having an insurance cover was Vusuya Enterprise Ltd of which the Plaintiff is a Director of and by not filing the action by the Company; the Plaintiff has breached section 18 of the Companies Act [Cap 247]. The Defendant further states; the Writ and the statement of Claim are not appropriate in many respects as per paragraph 22 and 23 (a) - (d) of the written submissions.
  3. The Defendants has not substantiated the first part of her aforesaid arguments in support of any documentary evidence and further, the latter part of the arguments cannot be judged summarily. Therefore, the Defendant cannot submit that the Plaintiff’s Summons and the Statement of Claim is scandalous in nature.
  4. The issue of whether a claim is frivolous or vexatious? Reference is made to paragraph 18/19/15 of the Supreme Court Practicec1993, Vol. 1 (White Book) which reads as follows:-

"By these words are meant cases which are obviously frivolous or vexatious or obviously unsustainable per Lindley LJ in Attorney General of Duchy of Lancaster v. L. & N.W.Ry [1892] UKLawRpCh 134; [1892] 3 Ch. 274, 277;.... The Pleading must be "so clearly frivolous that to put it forward would be an abuse of the Court" (per Juene P. in Young v. Halloway [1894] UKLawRpPro 42; [1895] P 87, p.90; ...."


  1. In Devi v. Lal [2014] FJHC 75; HBC 120.2008 (7th February,2014)- It was held as follows-

“The Oxford Advanced Learners Dictionary of Current English 7th Edition defines the words "frivolous" and "vexatious" as:-


frivolous: "having no useful or serious purpose"


vexatious: "upsetting" or "annoying"


Therefore, for a claim to be frivolous or vexatious, the Appellants must establish that the claim lacks merit (i.e. has no useful purpose) and is only to upset or annoy the Applicants.


  1. The Plaintiff claims several types of damages and breach of expectations, costs and interests arising out of an insurance claim (as outlined at paragraph 12 hereinabove) and therefore needs to be heard and determined by the Court in terms of the law and the evidence that the Parties to the proceedings may produce at the hearing proper.
  2. The claim prima facie cannot be judged summarily to be frivolous or vexatious; it needs to be appropriately examined by a court of law accordingly.
  3. Therefore, in the given circumstances, the Plaintiff’s claim cannot be said to be frivolous or vexatious.
  4. Whether the claim is otherwise an abuse of the process of the Court?
  5. It is well settled that this Court has inherent jurisdiction to strike out the claim or pleadings for abuse of Court process and reference is made to paragraph 18/19/18 of the Supreme Court Practice 1993 Vol. 1.-

At paragraphs 18/19/17 and 18/19/18 of Supreme Court Practice 1993 (White Book) Vol 1 it is stated as follows:-


"Abuse of Process of the Court"- Para. (1) (d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the Court." This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 P. 59, per Bowen L.J. p.63). See also "Inherent jurisdiction," para.18/19/18."


"It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the issue of fraud after the self-same issue has been tried and decided by the Irish Court (House of Spring Gardens Ltd. v. Waite [1990] 2 E.R. 990, C.A)."


"Inherent Jurisdiction - Apart from all rules and Orders and notwithstanding the addition of para.(1)(d) the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process (see Reichel v. Magrath [1889] UKLawRpAC 20; (1889) 14 App.Cas. 665). (para 18/19/18)


  1. In Halsbury's Laws of England Vol 37 page 322 the phrase "abuse of process" is described as follows:

"An abuse of process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."


  1. The phrase "abuse of process" is summarized in Walton v Gardiner (1993) 177 CLR 378 as follows:

"Abuse of process includes instituting or maintaining proceedings that will clearly fail proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness"


  1. Again, the summary procedure should not be used to determine the “abuse of process of the court’, rather the matter to be heard to determine the issue of the writ making a claim whether it is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it.
  2. Whether the Summons and the Statement of Claim have specifically pleaded in the within action Fraud, Negligence or Special Damages and evidence rather than facts?
  3. The Plaintiff has outlined the particulars of fraudulent activity and negligence at paragraphs 18 and 25 of his Writ of Summons and the Statement of Claim accordingly. It is for the court to hear and determine the case on a full hearing and not on interlocutory or summary basis to decide the issues whether the Plaintiff has pleaded Fraud, Negligence, Special damages and evidence in the within action or not.
  4. Further reference is made to the case of Timoci Uluivuda Bavadra v The Attorney Gen/b> (Sup.(Sup. Ct. (now High Court) C.A. No. 487 of 1987 where Rooney J said:

“I am not required to try any issues at this hg. All I have to decide whether there is an issue to be trie tried. It is not enough for the defendant to show on this application that the plaintiff’s case is weak and unlikely to succeed”.


  1. In Tawake v Barton Ltd [2010] FJHC 14; HBC 231 of 2008 (28 January 2010), Master Tuilevuka (as he was then) summarised the law in this area as follows;

"The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney –v- Prince Gardner [1998] 1 NZLR 262 at 267."


  1. His Lordship Mr Justice Kirby in Len Lindon –v- The Commonwealth of Australia (No. 2) S. 96/005summarised the applicable principles as follows:-
    1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
    2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ... or is advancing a claim that is clearly frivolous or vexatious...
    1. An opinion of the Court that a case appears weak and such that is unlikely to succeed is not, alone, sufficient to warrant summary termination... even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and arguments and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
    1. Summary relief of the kind provided for by O.26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
    2. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading.
    3. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
  2. In Paulo Malo Radrodro vs Sione Hatu Tiakia & Others, HBS 204 of 2005, the Court stated that:

"The principles applicable to applications of this type have been considered by the Court on many occasions. Those principles include:


  1. A reasonable cause of action means a cause of action with some chance of success when only the allegations and pleadings are considered – Lord Pearson in Drummond Jackson v British Medical Association [1970] WLR 688.
  2. Frivolous and vexation is said to mean cases which are obviously frivolous or vexations or obviously unsustainable – Lindley Li in Attorney General of Duchy of Lancaster v L.N.W Ry[1892] UKLawRpCh 134; [1892] 3 Ch 274 at 277.

c. It is only in plain and obvious cases that recourse would be had to the summary process under this rule – Lindley MR in Hubbuck v Wilkinson [1898] UKLawRpKQB 176; [1899] Q.B 86.


  1. The purpose of the Courts jurisdiction to strike out pleading is twofold. Firstly is to protect its own processes and scarce resources from being abused by hopeless cases. Second and equally importantly, it is to ensure that it is a matter of justice; defendants are permitted to defend the claim fairly and not subjected to the expense inconvenience in defending an unclear or hopeless case.
  2. "The first object of pleadings is to define and clarify with position the issues and questions which are in dispute between the parties and for determination by the Court. Fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that the opposing parties can bring evidence on the issues disclosed – ESSO Petroleum Company Limited v Southport Corporation [1956] A.C at 238" – James M Ah Koy v Native Land Trust Board & Others – Civil Action No. HBC 0546 of 2004.
  3. A dismissal of proceedings "often be required by the very essence of justice to be done"....... – Lord Blackburn in Metropolitan – Pooley [1885] 10 OPP Case 210 at 221- so as to prevent parties being harassed and put to expense by frivolous, vexations or hopeless allegation – Lorton LJ in Riches v Director of Public Prosecutions (1973) 1 WLR 1019 at 1027"
  1. Having perused and analyzed the issues raised by the Defendant couple with the principles dealing with the present application to Strike out the Plaintiff's Writ of Summons and the Statement of Claim, this court does not possess all the requisite material and evidence to reach a definite and certain conclusion, since the evidence is untested.
  2. Therefore, to determine the aforesaid issues raised herein, examination of the appropriate witnesses are of a paramount requirement to reach a just decision in the circumstances.
  3. Hence, considering the nature of the plaintiff's action, this is not the most appropriate stage to determine the success of its claim.
  4. Accordingly, I make the following orders-
    • (i) That the Defendant's Summons seeking the Striking Out of the Plaintiff's Writ of Summons and the Statement of Claim is hereby Dismissed and Struck Out .
    • (ii) That the Defendant to pay the Plaintiff a sum of $500 as costs of this application.
    • (iii) The Matter to take its normal cause.
    • (iv) Further directions to be made on 16th March, 2016.

Dated at Suva this 16th day of March, 2016


...........................................
MR VISHWA DATT SHARMA
Master of High Court, Suva


cc: Mr. Vakaloloma, Vakaloloma & Associates, Suva
Ms Swastika Narayan, Diven Prasad Lawyers, Suva

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